30 July 2010

As regular readers will know, I regard the concept of the commons as an increasingly important one, not least because it pulls together threads found in many disparate areas. But one consequence of that richness and broad reach is that a unitary idea of the commons is not enough: we need a taxonomy of the many different kinds of commons to help us tease out their particular characteristics in different situations.

Those are interesting choices, but I can't help feeling they're somewhat arbitrary. I also miss there any sense of the key differences between certain commons.

For example, there is a huge gulf between non-rivalrous digital commons, and rivalrous analogue ones. Where the latter can suffer the "tragedy of the commons", the former cannot. Similarly, there's a big difference between environmental commons like air, sea or forests, and artifical commons - the "Thing Commons" mentioned above. I'm also a little unsure whether the "Access Commons" - which is "access to infrastructure and services (i.e. politics)" - is really best construed as such.

Still, this is all thought-provoking stuff, and as such, to be welcomed. I shall certainly be pondering more as a result.

29 July 2010

As a former publisher (no, really) I am fascinated by, and sympathetic to, efforts to come up with new models for profitable publishing in the age of digital abundance. Clearly, part of that must include making digital text available for free (because if you don't do it, someone else will); the question is, what's the best way of doing that?

Against that background, I was intrigued to come across something calling itself OpenBook Publishers:

Open Book is an independent publisher run by academics for academics and for the readers of academic work. We are a Social Enterprise (CIC) company that publishes high quality, peer-reviewed monographs in the humanities and social sciences and ensures the widest possible distribution of its publications.

Open Book makes the whole publishing process in academia fairer, swifter and more affordable by utilizing three important technological advances: the digital medium, the Internet and print-on-demand.

What can and can’t be copied is a matter of law, but also of aesthetics, culture, and economics. The act of copying, and the creation and transaction of rights relating to it, evokes fundamental notions of communication and censorship, of authorship and ownership – of privilege and property.

Sounds just up my street. Interestingly, it uses print on demand for its analogue copies:

Open Book Publishers uses print on demand technology, so your books(s) will be printed rapidly once we have received your order.

That seems absolutely right to me - no huge cost upfront, no bulky stock to store, and lower cover prices as a result. But I'd prefer to take a look at the free digital version, if I may; so where's that "printable digital versions of both the entire book and individual book chapters to be downloaded online"?

Well, it's there as a PDF - but it costs £4.95 - not quite what I was expecting. It's true that you can read the title on Google Books, but it's a painful experience.

But wait, it says here:

Privilege and Property. Essays on the History of Copyright edited by Ronan Deazley, Martin Kretschmer and Lionel Bently is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 2.0 UK: England & Wales License.

Which means that once I - or anyone - has bought a copy of the PDF, it can be freely shared, subject to those conditions. Which means that it *will* be available online, sooner or later (assuming it's worth reading, and hence sharing), and that all the search engines will find it. So why slow down that process of discoverability by forcing someone to buy one copy? Is it really worth losing all that free marketing and visibility in the intervening days or weeks for the sake of £4.95?

This is a perfect example of well-meaning venture that hasn't quite thought through what publishing means today, and is still penny wise but pound foolish about those digital downloads....

28 July 2010

One of the many arguments against allowing patents for software (alongside the principle argument that software is made up of algorithms, which are essentially mathematics, which is pure knowledge and hence is not patentable) is the fact that software is anyway covered by copyright law. This means that others cannot simply copy your code, just as a novelist cannot simply copy large chunks of someone else's writing. But whether copyright law prevents others from copying the underlying ideas of that code by re-implementing them independently is another matter.

The content management company Day Software may not be the world's most famous outfit making money from open source – perhaps a function of the fact that it is located in Basel, hardly known as a hotbed of hackers – but it's certainly an important one, particularly in the Apache part of the open source ecosystem.

27 July 2010

Recently, there was an interesting rumour circulating that Oracle had a war chest of some $70 billion, and was going on an acquisition spree. Despite the huge figure, it had a certain plausibility, because Oracle is a highly successful company with deep pockets and an aggressive management. The rumour was soon denied, but it got me wondering: supposing Oracle decided to spend, if not $70 billion, say $10 billion in an efficient way: how might it do that? And it occurred to me that one rather dramatic use of that money would be to buy up the leading open source companies – all of them.

23 July 2010

Talking of commons, I was reading David Bollier's Viral Spiral recently, probably the best book about the rise of the commons as a new force (and I want to emphasise that I am not at all bitter about the fact that he didn't mention Rebel Code once in his description of the early days of free software - nope, not bitter in the slightest.)

I bought a dead tree version, but it's freely available online under a CC licence (sadly not an option when Rebel Code came out...for the simple reason Creative Commons was being formulated at the same time I was writing it.) That's appropriate, since the book is largely about the evolution of the CC licences - and a fascinating tale it is, too.

One particularity of those licences is the way that they try to give users different flavours (in fact there were originally more than there are now - some were later dropped). In many ways the ability to specify exactly which freedoms you are passing on is the most revolutionary - and contentious - part of the CC project.

Against that background, I was therefore delighted to come across Move Commons (MC), "a simple tool for initiatives, collectives and NGOs to declare the core principles they are committed to." It works in almost the same way as the CC licences, allowing you to specify exactly what your "core principles" are:

MC helps these initiatives to declare the core principles they are committed to, allowing others to understand the initiative’s insight with the first glance. The idea is to choose the MC that fits your initiative, and place the generated logo (a combination of four icons) in your webpage.

Once done that, when the next websurfer reaches the initiative’s webpage, it’ll be very easy to understand your initiative’s approach and immediatly answer several questions (Is this a Non-Profit? Are they transparent? Can I use part of their content for my blog? How are they organized internally? Do they expand the Commons with their actions?), before even clicking here and there.

But not only that. By choosing your MC you are connecting with other collectives using MC. Thus, anyone can come to movecommons.org and search for “non-profits that are sharing their contents, and are interested in environmentalism and education“, and if your initative fits that description, it’d appear there. You can thus link with other similar initiatives, regardless of their geographical location. Besides, volunteers could easily find you when they are searching with initiatives like yours… independently of how much you have invested in marketing

The page of options gives an idea of how this works, complete with dinky little logos representing things like profit/non-profit and hierarchical/non-hierarchical.

It's a clever idea, although I'm not sure they've got the key categories worked out yet - for example, it's not clear what the "Reproducible" option really means in terms of content licensing. Still, it's great to see people building on the CC ideas, just as Creative Commons built on the GNU GPL's original breakthrough.

As its name suggests, a commons is an outgrowth of things held in common, like common land. This has been extended to the digital sphere with great success - notably in the world of free software. But here's an interesting move that takes the commons back to its common-land roots: the Austrian city of Linz is creating an "open commons region":

[Via Google Translate: The guidelines for the implementation of the "open-commons Region Linz 'demands include the creation of an open-Commons Advisory Board, the establishment of a coordination center, initiatives for deals in the areas of education (Open Course Ware) and public databases, such as city information or maps (Open Data), revision of the magistratsweiten intranet with the use of open source software for the industrial, editorial and database system and audit of the use of other free software products in parts of the group Linz.]

which ticks most of the open boxes. The expected benefits are also wide ranging:

It began, perhaps, with SCO's insane attempt to obtain money from IBM and others for alleged infringements of its code. It proceeded with the music recording industry's increasingly vicious but fruitless threats to ordinary users, expanding more recently into the film business. Now, the Troll Economy has now come to the world of words:

Borrowing a page from patent trolls, the CEO of fledgling Las Vegas-based Righthaven has begun buying out the copyrights to newspaper content for the sole purpose of suing blogs and websites that re-post those articles without permission.

Strangely, perhaps, I think this is a great development. As the world of music shows, once rights-holders start making unreasonable demands, the implicit compact with the public is broken, and people no longer respect a copyright system that does not even attempt to treat them fairly.

The Troll Economy will simply lead to more people rejecting intellectual monopolies altogether, sowing the seeds of its own destruction. Troll away, chaps....

As regular readers of this blog will know, free software has an importance that extends way beyond the world of software. But for most people, it's hard to understand why software freedom is really that important. So this new report “Killed by Code: Software Transparency in Implantable Medical Devices” from the Software Freedom Law Center (SFLC) provides a handy opportunity to get the message across:

22 July 2010

In 2007 the British Library (BL) and the JISC funded The Google Generation Information Behaviour of the Researcher of the Future research (CIBER, 2008), which focused on how researchers of the future, ‘digital natives’ born after 1993, are likely to access and interact with digital resources in five to ten years’ time. The research reported overall that the information literacy of young people has not improved with wider access to technology.

To complement the findings of the Google Generation research, the BL and the JISC commissioned this three‐year research study Researchers of Tomorrow focusing on the information‐seeking and research behaviour of doctoral students born between 1982 – 1994, dubbed ‘Generation Y’.

There's lots of interesting stuff in the first report, but what really caught my attention was the following:

The principles behind open access publishing and self‐archiving speak to the students’ desire for an all‐embracing, seamlessly accessible research information network in which restrictions on access do not constrain them. Similarly, many of the students favour open source technology applications (e.g. Linux, Mozilla) to support the way they want to work and organise their research, and are critical of the lack of technical support to open source applications in their own institutions.

However, as the report emphasises, students remain somewhat confused about what open access really is. This suggests fertile ground for a little more explanation by open access practitioners - the benefits of doing so could be considerable.

It's also rather ironic that one of those behind the report should be the British Library: as I've noted with sadness before, the BL is one of the leading opponents of openness in the academic world, choosing instead to push DRM and patented-encumbered Microsoft technologies for its holdings. It's probably too much to expect it to read the above sections and to understand that it is going in exactly the wrong direction as far as future researchers - its customers - are concerned...

21 July 2010

Once more there is a lot of heated discussion about what constitutes a “real” open source business model – that is, one that remains true to the spirit of open source, and doesn't just use it as a trendy badge to attract customers. But such business models address only a tiny part of running a company – how it generates money. What about the many other aspects of a firm?

It's an old joke by now that this year will be the year of the GNU/Linux desktop – just like last year, and the year before that. But now there's a new twist: that this year will be the year of the GNU/Linux smartphone – with the difference that it's really happening.

19 July 2010

I recently wrote about the latest iteration of the Open Source Hardware Definition, which provides a framework for crafting open hardware licences. It's a necessary and important step on the road towards creating a vibrant open source hardware movement. But the kind of open hardware that is commonly being made today – things like the hugely-popular Arduino - is only the beginning.

15 July 2010

One of the many things I love about Wikipedia is the underlying vision, as articulated by Jimmy Wales:

Imagine a world in which every single person on the planet is given free access to the sum of all human knowledge. That's what we're doing.

I love this because it really goes beyond just entries in Wikipedia; it's about making everything that *can* be made universally available - non-rivalrous, digital content, in other words - freely accessible for all.

It's one of the key reasons why I think copyright (and patents) need to go: they are predicated on stopping this happening - of *not* sharing what can be shared so easily.

In terms of how we might go beyond Wikipedia, here's the kind of thing I mean:

Andrei Tarkovsky (1932-1986) firmly positioned himself as the finest Soviet director of the post-War period. But his influence extended well beyond the Soviet Union. The Cahiers du cinéma consistently ranked his films on their top ten annual lists. Ingmar Bergman went so far as to say, “Tarkovsky for me is the greatest [director], the one who invented a new language, true to the nature of film, as it captures life as a reflection, life as a dream.” And Akira Kurosawa acknowledged his influence too, adding, “I love all of Tarkovsky’s films. I love his personality and all his works. Every cut from his films is a marvelous image in itself.”

Shot between 1962 and 1986, Tarkovsky’s seven feature films often grapple with metaphysical and spiritual themes, using a distinctive cinematic style. Long takes, slow pacing and metaphorical imagery – they all figure into the archetypical Tarkovsky film.

Thanks to the Film Annex, you can now watch Tarkovsky’s films online – for free.

Since Tarkovsky is one of my two favourite directors (Mizoguchi, since you ask), you can imagine how my heart leapt when I went to the main site and found not only those seven main films but various shorts and documentaries as well.

Imagine now, *every* film being freely available in this way, and every piece of music - of every genre - every picture, every book, every kind of knowledge, from every time and culture. Just imagine the possibilities for enriching people's lives (once they have a capabilities of accessing it, or course - a non-trivial pre-requisite.) Imagine the impact that would have on them, their families, their nations, and on the world. Now tell me why we should let copyright stop that happening.

Update: oh, what a surprise: some of the films have *already* disappeared because of "copyright issues". Because copyright is so much more important than letting everyone enjoy an artist's work. (Via Open Education News.)

The growing success of open source software has naturally spurred on others to apply its lessons elsewhere. Open content is perhaps the most famous translation, notably through the widely-used Creative Commons licences. But one of the most challenging domains to come up with something equivalent to the Open Source Definition (OSD) is hardware – not surprisingly, perhaps, since hardware is analogue, not digital, and hence very different in nature.

14 July 2010

In the wake of its “success” in pushing through Digital Economy Act, the British music industry is hoping to move on to the next stage: using it as a lever to get more money out of the system (even though the music industry is currently thriving).

The UK royalties collector PRS For Music has just published a rough blueprint [.pdf] for how this might be done, entitled: “Moving Digital Britain Forward, without leaving Creative Britain behind”. It's a fascinating document, and merits close reading.

As the title suggests, there are essentially just two players in this analysis: the music industry, and the ISPs (the public are obviously irrelevant here). The ISPs are no longer lowly bit-mules, mindlessly obeying Net neutrality by conveying digital files hither and thither without a thought as to their content, but are to be regarded as “Next Generation Broadcasters”:

operators of networks that connect supply with demand in a market for media.

That's important, of course, because it reframes the debate about file-sharing in terms of old technology: radio and TV. It permits the argument to be made that such “broadcasters” have to pay for the privilege of broadcasting all that content – just like the radio and TV broadcasters do.

The paper makes a very good point about the increased capacity networks that are being built:

One of the few studies to be published comes from MoneySupermarket, who found that more than a third of consumers surveyed believe the advent of high-speed, next-generation broadband services would encourage greater piracy and make it easier to illegally download content. The report concluded that: ‘Illegal downloading is already a big problem for the likes of the music and film industries ... with superfast broadband packages set to become commonplace, the problem seems likely to get worse.’

I think that's true, but the analysis dismisses too easily the main reason for this:

Perhaps, like iTunes, these legal venues could increase the range of content on offer, but this increase comes at a high cost when already at a significant disadvantage to “free”.

That's a vicious circle: music companies won't offer more content to compete with free, unauthorised sites because it would cost too much, which means that there won't be so much authorised content as unauthorised, which means that people will continue to be forced to opt for unauthorised downloads, which music companies aren't willing to compete with.

The report even mentions iTunes, which backs up this view: for once iTunes made available most of the content previously only found on unauthorised sites, it started raking the money in. And yet the report chooses to ignore this rare data point, and stick with its circularity – the reason being, it has a Cunning Plan. The ISPs – sorry, Next Generation Broadcasters – must pay:

If changes in the scale of unlicensed media can be measured, we can put a price on this spillover to bridge the value gap. Simply stated, at some date a price would be placed on the indexed measure of unlicensed media on ISP networks. If at a later date the measure of infringement increases, the value transferred (from ISP to rightsholders) would increase accordingly.

Conversely, were the measure of infringement to decrease, the amount transferred would decrease accordingly. The options for pricing such spillovers should be the subject of further research.

They should indeed: I think this is a splendid idea – if we could make just one tiny tweak.

For this to be fair, we must of course make sure that we capture all the effects of unauthorised file sharing so that its true economic effect is measured. That is, we shouldn't be measuring anything so crude and vague as the flow of allegedly unauthorised copyright materials across a network. After all, it's impossible to say whether some of that flow might be permissible uses, and then there's the question of whether people would have bought the equivalent content etc.

Instead, what needs to be ascertained is the knock-on economic effects of that file-sharing in the *real world*. And of course, one very important aspect that has to be included in that is the fact that those who share files buy more, not less, music. As Mike Masnick explains through a splendid series of links:

Study after study after study after study after study after study has shown the exact opposite -- noting that people who file share tend to be bigger music fans, and are more likely to spend on music.

So I think we should try out this report's suggestion that ISPs should pay for the consequences of their users' actions – provided the recorded industry pays the ISPs if it should turn out (as those six reports linked to by Masnick might suggest) that file sharing actually *increases* the sales of recorded music. What could be fairer than that?

Last week I published a short correspondence I had with Richard Stallman on the subject of the GNU GPL and copyright. As I mentioned, that was from a couple of years ago, but I thought it might be worth posting now given the lively interest in the issues it raises.

12 July 2010

I've never been one to follow the latest digital fashions immediately. I didn't start blogging until November 2005, and I only joined Twitter in January 2009, and identi.ca in May 2009. And so it is that I haven't joined Foursquare, or any of the other location-based social networks. That's partly because I like to wait, to see whether it's just a passing fad or something more enduring, and partly because I frankly haven't seen the point. Maybe it's about this:

Arguably the most important development in the world of open source in the last year or two has been the rise and rise of Google's Linux-based Android operating system. It's true that the mobiles out there employing it are not 100% free, but they are considerably more free than the main alternatives. More importantly, they are turning Linux into a global, mass-market platform in a way never before seen.

11 July 2010

Here's a variety of "sharing" I'd not come across before: private label rights. This is what Wikipedia has to say on the subject:

Private label rights is a concept similar to reselling, but the merchant is permitted to modify the product to fit his or her needs. Typical PLR products are articles, reports, eBooks, and autoresponders. This kind of content is used for the purpose of allowing multiple buyers to invest in the content with free rein to alter and use it by claiming authorship of it. It is typically used in online affiliate marketing systems.

As far as I can make out, this is a kind of a cross between spamblog content and pyramid selling.

One question that comes to mind is how much CC-licensed stuff ends up being passed around in this way? Of course, if the licence allows it, that's fine, but I wondered whether anyone had any experience of their content being "repackaged" in this way?

09 July 2010

Imagine a country that has one of the best Internet infrastructures in the world, and yet its government effectively forbids the use of GNU/Linux through a requirement that everyone employ a decade-old Windows-only technology for many key online transactions. That country is South Korea, where 1 Gbits/second Internet connections are planned for 2012; and that Windows-only technology is ActiveX.

A couple of days ago, I was writing about how Richard Stallman's GNU GPL uses copyright as a way of ensuring that licensees share code that they distribute – because if they don't, they are breaching the GPL, and therefore lose their protection against claims of copyright infringement.

08 July 2010

As long-suffering readers of this blog will know, one of the many reasons I am against software patents is that software consists of algorithms, and algorithms are just maths, so a software patent is a patent on knowledge - the purest knowledge there is (a mathematician writes).

Sometimes defenders of software patents deny that software is just algorithms (don't ask me how, but some do). So I was particularly interested to read about this poor hacker being contacted over - you guessed it - algorithms, pure and simple:

Landmark Digital Services owns the patents that cover the algorithm used as the basis for your recently posted “Creating Shazam In Java”. While it is not Landmark’s intention to alienate those in the Open Source and Music Information Retrieval community, Landmark must request that you do not ship, deploy or post the code presented in your post. Landmark also requests that in the future you do not ship, deploy or post any portions or versions of this code in its current state or in any modified state.

As you can see, there is no way of disguising the fact that this claims to be a patent on an *algorithm* - that is, on maths, which is knowledge and therefore unpatentable.

But it gets worse. As the poor chap points out:

I've written some code (100% my own) and implemented my own methods for matching music. There are some key differences with the algorithm Shazam uses.

That is, he didn't copy the code, and it's not even the same approach.

But wait, there's more.

As he notes:

Why does Landmark Digital Services think they hold a patent for the concepts used in my code? Even if my code works pretty different from the Shazam code (from which the patents came).

What they describe in the patent is a system which:1. Make a series of fingerprints of a media file and/or media sample (such as audio, but could also be text, video, multimedia, etc)2. Have a database/hashtable of fingerprints as lookup3. Compare the set of hashtable hits using their moment in time it happened

This is very vague, basically the only innovative idea is matching the found fingerprints linearly in time. Because the first two steps describe how a hashtable works and creating a hash works. These concepts are not new nor innovative.

Moreover:

I've also had contact with other people who have implemented this kind of algorithms. Most notible is Dan Ellis. His implementation can be found here: http://labrosa.ee.columbia.edu/~dpwe/resources/matlab/fingerprint/

He hasn't been contacted (yet), but he isn't planning on taking his MatLab implementation down anyway and has agreed for me to place the link here. This raises another interesting question, why are they targetting me, somebody who hasn't even published the code yet, and not the already published implementation of Dan?!

And if they think its illegal to explain the algorithm, why aren't they going after this guy? http://laplacian.wordpress.com/2009/01/10/how-shazam-works/

This is where I got the idea to implement the algorithm and it is mentioned in my own first post about the Java Shazam.

So, moving to that last site, we find a detailed analysis of the algorithm - which is all pretty obvious. How did he do that?

So I was curious how it worked, and luckily there is a paper [.pdf] written by one of the developers explaining just that. Of course they leave out some of the details, but the basic idea is exactly what you would expect: it relies on fingerprinting music based on the spectrogram.

In other words, the description of the algorithm by the company's programmers shows that it "is exactly what you would expect".

At every level, then, this is an obvious, algorithmic, mathematical approach. And yet someone in Holland - a country that doesn't recognise software patents at all - finds himself under pressure in this manner for some code he wrote independently implementing that general, algorithmic mathematical idea.

Now explain to me how patents promote innovation, please...

Update: Re-reading the post I realise that things are even more ridiculous. Here's what the company wants:

we would like you to refrain from releasing the code at all and to remove the blogpost explaining the algorithm.

Now, you recall that the algorithm is the thing that the company claims to have a patent on. The original idea behind a patent was that in return for its grant, the inventor would *reveal* all the details of his or her invention so that others could use it once the patent had expired, as a quid pro quo. So if the company claims a patent on its invention, it must *by definition* reveal the algorithm.

Against that background, this demand to remove an explanation of the algorithm is simply absurd, and contradicts the very nature of a patent - it's like asking the USPTO not to reveal the patents it grants.

Today is the last day for your MEPs to sign Written declaration ACTA 12/2010 (full background available from La Quadrature du Net.). To be precise, we have until 11am UK time to convince them to add their name to the list.

07 July 2010

As readers of this blog will doubtless know, Richard Stallman's great stroke of genius at the founding of the GNU project was to use copyright when crafting the GNU GPL licence, but in such a way that it undermined the restrictive monopoly copyright usually imposes on users, and required people to share instead.

Bradley M. Kuhn has a thought-provoking post with the title "Proprietary Software Licensing Produces No New Value In Society". Here's a key section:

I've often been paid for programming, but I've been paid directly for the hours I spent programming. I never even considered it reasonable to be paid again for programming I did in the past. How is that fair, just, or quite frankly, even necessary? If I get a job building a house, I can't get paid every day someone uses that house. Indeed, even if I built the house, I shouldn't get a royalty paid every time the house is resold to a new owner. Why should software work any differently? Indeed, there's even an argument that software, since it's so much more trivial to copy than a house, should be available gratis to everyone once it's written the first time.

He then goes on to point out:

Thus, this line of reasoning gives me yet another reason to oppose proprietary software: proprietary licensing is simply a valueless transaction. It creates a burden on society and gives no benefit, other than a financial one to those granted the monopoly over that particular software program. Unfortunately, there nevertheless remain many who want that level of control, because one fact cannot be denied: the profits are larger.

For example, Mårten Mikos recently argued in favor of these sorts of large profits. He claims that to "benefit massively from Open Source" (i.e., to get really rich), business models like “Open Core” are necessary. Mårten's argument, and indeed most pro-Open-Core arguments, rely on this following fundamental assumption: for FLOSS to be legitimate, it must allow for the same level of profits as proprietary software. This assumption, in my view, is faulty. It's always true that you can make bigger profits by ignoring morality. Factories can easily make more money by completely ignoring environmental issues; strip mining is always very profitable, after all. However, as a society, we've decided that the environment is worth protecting, so we have rules that do limit profit maximization because a more important goal is served.

This analysis is cognate with my recent post about the absence of billion-dollar turnover open source companies: the fact is, as a pure-play free software outfit, you just can't make so much money as you can with proprietary software, because you generally have to sell scarce things like people's time, and that doesn't scale.

But the implications of this point are much wider, I think.

As Kuhn emphasies:

I'll just never be fully comfortable with the idea that workers should get money for work they already did. Work is only valuable if it produces something new that didn't exist in the world before the work started, or solves a problem that had yet to be solved. Proprietary licensing and financial bets on market derivatives have something troubling in common: they can make a profit for someone without requiring that someone to do any new work. Any time a business moves away from actually producing something new of value for a real human being, I'll always question whether the business remains legitimate.

This idea of getting money for work already done is precisely how copyright is regarded these days. It's not enough for a creator to be paid once for his or her work: they want to be paid every time it is performed or copies made of performances.

So ingrained is this idea that anyone suggesting the contrary - like that doughty young Eleanor - is regarded as some kind of alien from another planet, and is mocked by those whose livelihoods depend upon this kind of entitlement economics.

But just as open source has cut down the fat profits of proprietary software companies, so eventually will the exorbitant profits of the media industry be cut back to reasonable levels based on how much work people do - because, as Kuhn notes, there really is no justification for anything more.

06 July 2010

As I noted in my post “Why No Billion-Dollar Open Source Companies?", one of the reasons there are no large pure-play open source companies is that their business model is based on giving back to customers most of the costs the latter have traditionally paid to software houses.

05 July 2010

Jim Whitehurst, president and CEO of Red Hat, the oldest and by far the most successful company whose business is based purely around open source, makes no bones about it: “Selling free software is hard,” he says. In fact, he goes further: “Open source is not a business model; it's a way to develop software.”

I love Wikipedia. I love using it, frequently spending many a spare minute (that I don't actually have) simply wandering from one entry to another, learning things I never knew I never knew. I love it, too, as an amazing example of why sharing and openness work. For those who aren't programmers, and who therefore don't grok the evident rightness of the open source methodology, Wikipedia is a great way of explaining how it's done and why it's so good.

Since, as Larry Lessig famously pointed out, "code is law" (and vice versa), it's natural to try to apply open source methodologies in the legal world. Indeed, a site called Openlaw existed ten years ago:

Openlaw is an experiment in crafting legal argument in an open forum. With your assistance, we will develop arguments, draft pleadings, and edit briefs in public, online. Non-lawyers and lawyers alike are invited to join the process by adding thoughts to the "brainstorm" outlines, drafting and commenting on drafts in progress, and suggesting reference sources.

Building on the model of open source software, we are working from the hypothesis that an open development process best harnesses the distributed resources of the Internet community. By using the Internet, we hope to enable the public interest to speak as loudly as the interests of corporations. Openlaw is therefore a large project built through the coordinated effort of many small (and not so small) contributions.

Despite this long pedigree, open source law never really took off - until now. As this important post points out:

The case of British Chiropractic Association v Simon Singh was perhaps the first major English case to be litigated under the full glare of the internet. This did not just mean that people merely followed the case’s progress on blogs and messageboards: the role of the internet was more far-reaching than this

Crucially:

The technical evidence of a claimant in a controversial case had simply been demolished - and seen to be demolished - but not by the conventional means of ­contrary expert evidence and expensive forensic cross-examination, but by specialist bloggers. And there is no reason why such specialist bloggers would not do the same in a similar case.

The key thing is that those bloggers need to be engaged by the case - this isn't going to happen for run-of-the-mill litigation. But that's OK: it means that when something important is at stake - as in the Singh case - and their help is most needed, they *will* be engaged, and that wonderful digital kraken will stir again.

02 July 2010

There's a new meme in town these days: “rights of the artists”. The copyright industries have worked out that cries for more copyright and more money don't go down too well when they come from fat-cat monopolists sitting in their plush offices, and so have now redefined their fight in terms of struggling artists (who rarely get to see much benefit from constantly extended copyright).

Here's a nice example courtesy of the Copyright Alliance – an organisation that very much pushes that line:

Songwriter, Jason Robert Brown, recently posted on his blog a story about his experience dealing with copyright infringement. Knowing for a long time that many websites exist for the sole purpose of “trading” sheet music, Jason decided to log on himself and politely ask many of the users to stop “trading” his work. While many quickly wrote back apologizing and then removing his work, one girl in particular gave Jason a hard time.

First of all, I must commend Mr Brown for the way he has gone about addressing this issue. As he explains on his blog, this is the message he sent to those who were offering sheet music of his compositions on a site:

Hey there! Can I get you to stop trading my stuff? It's totally not cool with me. Write me if you have any questions, I'm happy to talk to you about this. jason@jasonrobertbrown.com

Thanks,J.

Now, that seems to me an eminently calm and polite request. Given that he obviously feels strongly about this matter, Mr Brown deserves kudos for that. As he explains:

The broad majority of people I wrote to actually wrote back fairly quickly, apologized sincerely, and then marked their music "Not for trade."

However, he adds:

there were some people who fought back. And I'm now going to reproduce, entirely unexpurgated, the exchange I had with one of them.

Her email comes in to my computer as "Brenna," though as you'll see, she hates being called Brenna; her name is Eleanor. I don't know anything about her other than that, and the fact that she had an account on this website and was using it to trade my music. And I know she is a teenager somewhere in the United States, but I figured that out from context, not from anything she wrote.

After some initial distrust, the conversation starts to get interesting, and it turns out that Eleonor, although just a teenager, has a pretty good grasp of how digital abundance can help artists make money:

Let's say Person A has never heard of "The Great Jason Robert Brown." Let's name Person A "Bill." Let's say I find the sheet music to "Stars and the Moon" online and, since I was able to find that music, I was able to perform that song for a talent show. I slate saying "Hi, I'm Eleanor and I will be performing 'Stars and the Moon' from Songs for a New World by Jason Robert Brown." Bill, having never heard of this composer, doesn't know the song or the show. He listens and decides that he really likes the song. Bill goes home that night and downloads the entire Songs for a New World album off iTunes. He also tells his friend Sally about it and they decide to go and see the show together the next time it comes around. Now, if I hadn't been able to get the sheet music for free, I would have probably done a different song. But, since I was able to get it, how much more money was made? This isn't just a fluke thing. It happens. I've heard songs at talent shows or in theatre final exams and decided to see the show because of the one song. And who knows how they got the music? It may have been the same for them and if they hadn't been able to get it free, they would have done something else.

Which is, or course, absolutely spot on.

Mr Brown tries to explain why he disagrees using three stories. The first is about lending a screwdriver to a friend, who then refuses to give it back:

He insists that he has the right to take my screwdriver, build his house, then keep that screwdriver forever so he can build other people's houses with it. This seems unfair to me.

And he's right of course: it *is* unfair, because he has lost his screwdriver, which is an analogue, and therefore rivalrous, object. His sheet music, by contrast, in its digital form, is non-rivalrous: I can have a copy without taking his copy. Yes, there's the issue of whether he loses out, but as Eleonor pointed out, sharing sheet music is a good way to drive sales – it's marketing.

The second story concerns lending another friend a first edition copy of a book by Thornton Wilder; once again, the friend refuses to give it back:

Two months go by; there's a big hole on my bookshelf where "The Bridge of San Luis Rey" is supposed to go. I call my friend, ask him for my book back. He comes over and says, "I love this book, yo. Make me a copy!"

Again, we have the analogue element: this is a rivalrous object, and when the friend has it, poor Mr Brown doesn't have it. But there's another idea here: making copies:

the publishing company won't be able to survive if people just make copies of the book, I say, and the Thornton Wilder estate certainly deserves its share of the income it earns when people buy the book.

Here, the important thing to note is that people *can't* “just make copies of the book”. Yes, they can photocopy it, but that's certainly not the same as a first edition, which is not only rare, but comes with a very particular history. Even if you photocopied the text in order to get to know it, it wouldn't detract from the value of the first edition, which is a rare, rivalrous analogue object. And the Thornton Wilder estate has *already* been paid for the first edition, so there's no reason why they should expect to be paid again if a photocopy is made. And once more, sharing photocopies is likely to drive *more* sales of new editions – which will produce income for the estate.

The third story is even more revealing:

I bought a fantastic new CD by my friend Michael Lowenstern. I then ripped that CD on to my hard drive so I can listen to it on my iPod in my car. Well, that's not FAIR, right? I should have to buy two copies?

No. There is in fact a part of the copyright law that allows exactly this; it's called the doctrine of fair use. If you've purchased or otherwise legally obtained a piece of copyrighted material and you want to make a copy of it for your own use, that's perfectly legal and allowed.

And Mr Brown is absolutely correct – in the *US*. But here in the UK, I have no such right. So what seems self-evidently right to Mr Brown in the US, is in fact wrong in the UK. The reason for that is absolutely central to the whole argument here: the balance between the rights of the creators and the rights of the users is actually arbitrary: different jurisdictions place it at different points, as Mr Brown's example shows.

In fact, Eleonor touched on this in another amazingly perceptive comment:

I assume that because something that good comes from something so insignificantly negative, it's therefore mitigated.

The “something good” that she's talking about includes things like this:

Would it be wrong for me to make a copy of some sheet music and give it to a close friend of mine for an audition? Of course not.

What she is saying is that in weighing up the creator's rights and the user's rights, things have changed in the transition from analogue to digital. Making a copy of a digital object is a minimal infraction of the creator's rights – because nothing is stolen, just created – but brings huge collective benefits for users. And so we need to recalibrate the balance that lies at the heart of copyright to reflect that fact.

As Mr Brown's examples consistently show, he is still thinking along the old, analogue lines with rivalrous goods that can't be shared. We are entering an exciting new digital world where objects are non-rivalrous, and can be copied infinitely. Not surprisingly, the benefits to society that accrue as a result easily outweigh any nominal loss on the creator's part. That's why we need to ignore these calls to our conscience to think about the poor creator – even one as pleasant and sympathetic as Mr Brown – because they omit the other side of the equation: the other six billion people who form the rest of the world.

We're working to create a more open and less intrusive society. We want to restore Britain’s traditions of freedom and fairness, and free our society of unnecessary laws and regulations – both for individuals and businesses.

About Me

I have been a technology journalist and consultant for 30 years, covering
the Internet since March 1994, and the free software world since 1995.

One early feature I wrote was for Wired in 1997:
The Greatest OS that (N)ever Was.
My most recent books are Rebel Code: Linux and the Open Source Revolution, and Digital Code of Life: How Bioinformatics is Revolutionizing Science, Medicine and Business.